Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Andrew Drummond and Associates Pty Ltd and Paul Winston Askins
[2019] NNTTA 88
•24 October 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Andrew Drummond and Associates Pty Ltd and Paul Winston Askins & Another [2019] NNTTA 88 (24 October 2019)
Application No: | WO2018/0555 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (WCD2013/004)
(native title party)
- and -
Andrew Drummond & Associates Pty Ltd and Paul Winston Askins
(grantee parties)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 24 October 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – non-disclosure directions – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure applies – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 155, 162, 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | Butcher Cherel on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees) Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150 (Jango v Northern Territory) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra v Western Australia) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (Wiluna v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Sally Raine, Fremantle Law Pty Ltd |
| Representative of the grantee party: | Paul Askins |
| Representatives of the Government party: | Matthew Smith and Bethany Conway, Department of Mines, Industry Regulation and Safety Michael McIlwaine, State Solicitor’s Office |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Act that it intended to grant exploration licence E53/1985 (the licence) to Andrew Drummond & Associates Pty Ltd and Paul Winston Askins (the grantees). In the notice, the State asserted the proposed grant of the licence attracted the expedited procedure. As outlined in s 237 of Native Title Act 1993 (Cth) (the Act), the expedited procedure applies where the grant of the licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The licence is approximately 190 square kilometres in size and is located approximately 48 kilometres east of the town of Wiluna. The Federal Court of Australia (the Court) determined that native title exists in relation to land and waters in the area covered by the licence (Wiluna v Western Australia). Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (TMPAC) is the registered native title body corporate that holds this native title in trust for the native title holders.
Non-exclusive native title exists in relation to almost the entire area covered by the licence. The non-exclusive rights and interests of the native title holders, as determined by the Court, are the rights to:
(a)access, remain in and use that part;
(b)take and use resources in that part; and
(c)have access to, maintain and protect places, and areas and objects of importance on or in that part.
TMPAC lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. I have been appointed to decide whether the expedited procedure applies. If I find the expedited procedure applies, the licence can be granted without negotiations between the parties. If I find it does not apply, the grantees and the State must negotiate in good faith with a view to reaching an agreement with the native title holders about the grant of the licence.
My decision is based on addressing the criteria set out in s 237 and making a predictive assessment (Yindjibarndi v FMG at [15]). I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the licence.
The parties submissions
TMPAC argue the expedited procedure should not apply as the grant will interfere with sites of particular significance in accordance with s 237(b). They do not pursue their objection under s 237(a) or s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant is likely to interfere with the native title holders’ community or social activities, or involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(a) or s 237(c) is unlikely. I focus this inquiry on s 237(b).
This inquiry was originally being heard with WO2018/543 - the tenement in that matter (E53/1984) was approximately 5 kilometres to the north of the licence, and the grantees were identical. The grantees withdrew their application for E53/1984, and so that inquiry did not proceed.
Due to the way the TMPAC contentions were drafted (in parts, combining both inquiries), I sought clarification as to what information and evidence applied to this inquiry. TMPAC confirmed that certain parts of a statement by anthropologist Dr William Kruse, together with Attachments and an Appendix to that statement, applied to this matter. The grantees and the State were provided with a period in which to consider that material, and provide a response for the inquiry proceedings in this matter, should they wish to do so.
TMPAC’s materials
For the purposes of this inquiry, I had regard to the following TMPAC materials:
(a)Statement of Contentions and mapping.
(b)Statement of Mr Victor Ashwin.
(c)Statement of Dr Kruse, including Attachments A to D and Appendix 1.
(d)Statement of Contentions in reply to the grantees’ and State’s submissions.
Mr Ashwin outlines that he is a native title holder, and Dr Kruse outlines his qualifications as an anthropologist. I am satisfied each has authority to speak to the licence area on behalf of the objectors.
I made directions under s 155 of the Act to prohibit disclosure of particular sections of Mr Ashwin’s statement because I was satisfied it contains culturally sensitive information. The directions restrict disclosure of those sections only to the grantees and the State (including their officers, employees, contractors and legal representatives), and to myself and my support staff for the purpose of these proceedings. Section 162(2) of the Act requires me to state any findings of fact in this determination and nothing in the directions prohibits me from doing so. Where possible, I have avoided setting out any details that might disclose the restricted evidence identified in the directions.
Attachments A, B and C of Dr Kruse’s statement relate to the Matuwa and Kurra Kurra Indigenous Protected Area Country Management Plan 2015-2020 (Management Plan). Dr Kruse’s statement describes the licence as containing various types of country which are relevant to the Management Plan. He states (at 45) that the Management Plan ‘provides a framework for wide-ranging and ongoing community use and management of the land it covers’. No specific link has been drawn between s 237(b) considerations, the Management Plan and the licence. As such, I have not taken the Management Plan into consideration in this inquiry. Attachment D refers to Science Pathways for Indigenous Communities, which is an educational foundation. I have not taken this into account as the evidence is broad and not tied to the licence. The appendix to Dr Kruse’s statement contains mapping which I consider is relevant to this inquiry.
The grantees’ materials
Mr Askins (one of the grantees) provided initial contentions, a further statement, and a final statement (the latter provided on 10 October 2019, addressing Dr Kruse’s material). These materials were provided on behalf of both grantees.
In his initial contentions, Mr Askins describes the area covered by the licence as encompassing a system of salt lakes ‘about 40km long’ containing ‘potassium salts (potash) as well as the more common salt, sodium chloride. It is speculative that lithium salts might also be present’. He submits the salt lakes within the district of the licence ‘have previously been explored by other companies and that the known presence of potash in those lake systems means that almost certainly there are resources of potash in the geologically identical lake system of The Tenement’ (at 13-14). Mapping prepared by the State and TMPAC shows the licence overlays part of the salt lakes system.
In relation to Mr Ashwin’s statement, the grantees submit in their initial contentions that:
·it is not sworn and should not be relied upon;
·there is no certainty the assertions and beliefs reflect the majority of Martu people;
·the Tribunal should consider the broader implications of Mr Ashwin’s statement on the definition of areas of significance; and
·they express general disagreement with the views and beliefs of Mr Ashwin.
Mr Ashwin’s statement is signed and dated, and I do not consider it to be unreliable. It is internally consistent, and consistent with the evidence provided by Dr Kruse, and with mapping provided. I accept Mr Ashwin’s statement as being evidence of the native title holders in relation to the area of the licence and surrounds.
The grantees, through Mr Askins, submit in their initial contentions that TMPAC have identified a ‘vast region’ of particular significance, ‘and not a defined restricted area of particular significance’. Mr Askins does not accept (at 43-44) the principle of interference in accordance with traditions as acknowledged and observed by the native title holders. He refutes particular statements in TMPAC’s contentions, and argues that their intent is to prevent all lake exploration and development (at 48). This view is reiterated in the grantees’ final statement, along with arguing Dr Kruse’s evidence is biased and is not the view of ‘an independent anthropology expert’ (at 13). I note the grantees’ view of the TMPAC materials and I have considered those views in my assessment of those materials – my reasons are outlined in more detail from [25] onwards.
In relation to the grantees’ challenge to Dr Kruse’s evidence, I have already noted that I will not be taking into account some parts of that evidence (at [13]). As for the remainder of the evidence of Dr Kruse, provided in relation to this licence, the Tribunal has outlined on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work is probative (see Neowarra v Western Australia at [388]). And that this is particularly so when it accords with the native title party evidence. For example, in Jango v Northern Territory, the Court outlined:
It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist’s evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people.
Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps (at [291]-[292]).
In my reasons from [26] below, I have outlined those aspects of Dr Kruse’s evidence which I consider supplement Mr Ashwin’s evidence.
The State’s materials
The State provided initial contentions, as well as information about land tenure over the licence, a copy of the licence application and proposed endorsements and conditions of grant. Included in this information are the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS). These results show no Registered Aboriginal Sites or Other Heritage Places recorded on the licence. Mr Askins notes for the grantees that the lake on the licence which is referred to as an area of particular significance by TMPAC is not on the AHIS, whereas other lakes nearby are so recorded. However, the test for particular significance does not include whether or not a site or area is on the AHIS.
What will the grantees’ activities be?
Mr Askins states the grantees’ ‘aim is to seek and define economic concentrations of lithium and potash in brines in paleochannels. Potash is used particularly as a fertiliser, and lithium in making new-era batteries’ (initial contentions at 12). He submits that exploration will establish the presence of the potash resource and if any concentrations of lithium are commercially extractable. He describes the activities associated with that exploration which aims to locate the ‘the path of the prospective paleochannel’ beneath the salt lakes. In summary, the grantees intend to undertake:
(a)office based studies to review past work, compile and assess information such as satellite imagery and past airborne geophysical surveys to define areas of field work;
(b)initial non-ground-disturbing field work – geological mapping, chemical analyses of surface lake waters, surface salts and sediments samples; and
(c)non-ground disturbing passive seismic survey using ‘a shoe-box sized instrument on the ground to record natural earth vibrations’ (at 18-20).
The grantees submit that the environmental impact of this program in the first year will be negligible. If positive results are achieved, the second year will involve drilling to collect sub-surface samples (at 22). The application for the licence (included in the State’s materials) contains the statement that ‘if justified a larger drill program to enable resource definition’ may follow. This is expanded on in the grantees’ initial contentions where Mr Askins outlines it ‘is likely that of the total length of the paleochannel in The Tenement, only a few kilometres will prove to have a well-defined paleochannel with good grade brines warranting exploitation’ (at 23). This suggests the channel is likely to be longer than a few kilometres. He states that the grantees aim to keep TMPAC informed of work progress and are prepared to sign a heritage protection agreement that does not ‘radically depart from the State-sanctioned RSHA’ (Regional Standard Heritage Agreement) (at 24 and 26-28). He outlines that in ‘the second year of an exploration program, provided that the results of the first non-ground-disturbing work are positive, drilling would be necessary to collect sub-surface samples in the paleochannel, and hopefully delineate a commercial resource’ (at 22).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to TMPAC?
The question I need to answer is whether there is a real chance the grantees’ exploration activities are likely to interfere with areas or sites of particular significance. An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). Each matter must be considered on its own facts (Cherel v Faustus Nominees at [81]-[91]).
What sites do TMPAC identify as being of particular significance in accordance with their traditions?
Mr Ashwin outlines the following sites or areas in his statement:
(a)A jukurrpa (dreaming) within the licence (for example at 4-5, 18).
(b)The lake within the licence (for example at 5-9).
Mr Ashwin outlines the direction and pathway of the specific jukurrpa related to the lake on this licence, which travels between two named geographical areas. I am satisfied that the licence is between these two areas and as such the jukurrpa travels across the licence. I am also satisfied, based on the evidence provided in Mr Ashwin’s statement, that the lake which underlies the licence is intimately connected to the jukurrpa, in accordance with the native title holders’ traditions. The TMPAC contentions provide a map which shows the extent of the area which they say is of particular significance to the native title holders, in the context of this licence.
Dr Kruse outlines his experience working with TMPAC over an 11 year period. He provides evidence about what jukurrpa are in general terms, and the importance of jukurrpa to TMPAC native title holders. He links jukurrpa to the native title holder traditions (at 18-25). For example, he states ‘Jukurrpa heavily shapes the way the claimants see and understand their country and their rights and responsibilities in respect to it’ (at 21). Dr Kruse also makes clear it is only certain areas which are associated with specific activities associated with the mythic beings of a jukurrpa (at 22).
On behalf of the grantees, Mr Askins is critical of the TMPAC evidence, indicating it is too broad in scope. Mr Askins has referred to the TMPAC traditions and beliefs as ‘rigid’ (final statement at 29). He suggests policies that the native title holders could apply, in the expression of their traditions, which ‘would result in all lake systems being open to appropriately guided development’ (final statement at 39-40). I accept that Mr Ashwin provides broad information about the scale of the mythic beings throughout the lakes in the TMPAC area and beyond. However, Mr Ashwin also very clearly and specifically refers to and outlines the importance of the particular lake, which is on the licence, and how there is a jukurrpa associated with that lake.
Mr Askins is also critical of Dr Kruse’s experience with the native title holders and asserts Dr Kruse’s expertise is ‘confined to specific areas north of The Tenement’ (final statement at 14-15). However, Dr Kruse has outlined his experience working with TMPAC native title holders, and the broader Western Desert Cultural Bloc, which have in common ‘key ceremonial and religious practice’ (at 6-7). I am satisfied he is familiar with the traditions of the native title holders in this matter. As per Jango v Northern Territory, I have only considered Dr Kruse’s evidence as a supplement to Mr Ashwin’s statement (as noted at [18] above).
Mr Ashwin refers to sanctions being imposed on native title holders who fail to properly look after the jukurrpa and other culturally significant places located in the landscape (Mr Ashwin at 22, 26-27; supplemented by Dr Kruse at 25). Dr Kruse summarises the material as follows, and I accept that opinion and evidence:
My opinion is further supported by Mr. Victor Ashwin’s Witness Statement dated 31 May 2019, which makes it clear the profound and likely violent consequences of failing to speak for and protect country where sites of particular significance stemming from Jukurrpa are located (at 44).
Dr Kruse also outlines the types of exploration activities which would be likely to cause interference with such country, in accordance with TMPAC’s traditions. These include ‘ground-disturbing activity caused by exploration drilling’ as well as ‘low-impact exploration methods such as hand sampling, and unguided-by-Martu access to the area by four-wheel drive…’ (at 44). I consider that such the State’s regulatory regime, as outlined in the materials and evidence provided for this inquiry, would not be sufficient to afford the lake underlying this licence sufficient protections from interference from such activities so as not to offend s 237(b). I will now explain this further.
In making my predictive assessment on the likelihood of interference, I have considered the information provided by the State and Mr Askins that some previous mining or exploration has occurred over the area. The TMPAC reply notes that there is little to no information about the nature and extent of such activity, and I accept that view. I also note that information about past grants do not outline whether or not any exploration was conducted under an agreement between native title holders and the relevant explorer. Section 237(b) specifically requires me to consider whether the grant of this licence is likely to interfere with the lake, considering the native title holders traditions.
The State contends interference with sites of particular significance is unlikely due to the protection afforded by the Aboriginal Heritage Act 1972 (WA) (AHA) and its regulatory regime, including the endorsements and conditions that will be imposed on the licence. I cannot see any endorsements and conditions which would address the likely interference s outlined by TMPAC. In addition, the protections afforded under the AHA, and its relevance to considerations under s 237(b), were recently considered by President Dowsett in Marputu v Gianni:
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognized, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners (at [44]).
As well as suggesting the AHA would afford sufficient protection in this matter, the State intends to impose a condition on the grant of the licence requiring the grantees to execute a Regional Standard Heritage Agreement (RSHA) in favour of TMPAC should they request it (at 12). The State notes the RSHA requires a grantee party to notify, consult and, if necessary, carry out surveys with the native title party (at 14). Mr Askins has noted that the grantees would be willing to enter into an RSHA type agreement. However, in relation to such agreements, it was noted in Marputu v Gianni:
As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into [an RSHA] says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case (at [66]).
Conclusion
It is clear the grantees intend to use the lake underlying the licence as a feature point of their exploration activity. Mr Askins states that surface and subsurface activity on the lake is likely to be needed to explore the viability of a commercial product, and it appears likely those channels will stretch for more than a few kilometres across the lake.
I consider TMPAC has established the lake underlying the licence is an area of particular significance which is likely to suffer interference, in accordance with the native title holders’ traditions, from the grantees’ exploration activities.
Determination
The determination is that the act, namely the grant of exploration licence E53/1985 to Andrew Drummond and Associates Pty Ltd and Paul Askins, is not an act attracting the expedited procedure.
Helen Shurven
Member
24 October 2019
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